Amendment to Annual Report — Form 10-K
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 10-K/A Amendment to Annual Report 56± 243K
2: EX-3.1 Articles of Incorporation/Organization or By-Laws 8± 33K
3: EX-3.2 Articles of Incorporation/Organization or By-Laws 8± 34K
4: EX-4.8 Instrument Defining the Rights of Security Holders 53± 222K
5: EX-4.9 Instrument Defining the Rights of Security Holders 20± 88K
6: EX-10.18 Material Contract 8± 41K
7: EX-10.20 Material Contract 6± 29K
8: EX-10.35 Material Contract 16± 65K
9: EX-10.36 Material Contract 62± 291K
10: EX-11.1 Statement re: Computation of Earnings Per Share 2± 14K
11: EX-21.1 Subsidiaries of the Registrant 1 7K
12: EX-23.1 Consent of Experts or Counsel 1 7K
EX-10.18 — Material Contract
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Exhibit 10.18
SEPARATION AGREEMENT AND RELEASE
This Separation Agreement and Release ("Agreement") is made
and entered into this 31st day of December 1993, by and Doskocil
Companies Incorporated, a Delaware corporation ("Company"), and
John T. Hanes ("JH"), an individual.
WHEREAS, the Company and JH entered into an employment
agreement in 1991 (the "Employment Agreement"); and
WHEREAS, the Company and JH desire to sever their
employment relationship; and
WHEREAS, JH previously was granted twenty-five thousand
(25,000) shares of restricted stock of the Company ("Restricted
Stock") and twenty-five thousand (25,000) performance shares of
the Company ("Performance Shares") (the Restricted Stock and the
Performance Shares, together with any additional shares which may
have accrued to JH's benefit as a result of stock dividends,
stock splits or otherwise, are referred to herein as the "Equity
Shares") pursuant to the Company's 1992 Stock Incentive Plan
(the "Incentive Plan") established and administered by the
Company for certain of its senior executives; and
WHEREAS, JH previously was granted non-qualified options to
purchase forty thousand (40,000) shares of common stock of the
Company (the "Stock Options") pursuant to the Incentive Plan; and
WHEREAS, the Company desires to protect its confidential
information and trade secrets and to insure JH's compliance with
certain post-employment covenants that the Company and JH agree
are reasonable and necessary;
WHEREAS, JH desires to receive certain severance payments
and benefits that he would not otherwise be entitled to receive;
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the
Company and JH hereby agree as follows:
1. Separation. On a date to be determined in the Company's
sole discretion, JH shall be separated permanently from his
employment with the Company (the "Effective Date"). The
Company shall provide JH at least ninety (90) days notice prior
to the effective date. From the Effective Date forward, JH shall
have no authority to, nor shall he make any representations,
commitments or assume any obligations on behalf of the Company.
JH understands and agrees that he shall not at any time apply for
employment or re-employment with the Company nor any of the
Related Entities (as that term is hereinafter defined).
2. Terms of Separation. In consideration of the promises
and covenants set forth herein, the Company agrees to provide the
following to JH:
(a) Severance Pay. Severance Pay as follows: (i) a lump
sum payment equal to the base salary received by JH during the
period September 22, 1993 through December 31, 1993, shall be
payable on or about January 3, 1994; and (ii) twice monthly
severance payments beginning on January 1, 1994 and ending on
December 31, 1994. All severance payments will be provided at
JH's base salary rate as of the Effective Date.
(b) Automobile and Club Allowance. A lump sum payment of
$14,339.00, representing the present value of JH's automobile and
club allowance (Prairie Dunes Country Club, Quail Creek Country
Club, Petroleum Club) through December 31, 1994, shall be payable
on or about January 3, 1994.
(c) Medical Insurance. Continued coverage equal to current
coverage under the Company's group medical insurance plan for JH
and his spouse until the earlier of the following: (i) the
beginning of the month following the date on which JH reaches, or
would have reached, age 65 and (ii) the date on which JH is
offered medical insurance coverage by a new employer.
(d) 401(k) Plan. A lump sum payment of $28,503.00,
representing the present value of amounts the Company would have
contributed to the Doskocil 401(k) plan on behalf of JH had JH
remained employed by the Company until age 65. This lump sum
payment will be provided on or about January 3, 1994.
(e) Life Insurance. The Company agrees to purchase and
maintain until JH attains 65 a separate insurance policy with
coverage equal to current coverage.
(f) Bonus. If the relevant performance objectives described
in the Doskocil Companies Incorporated Annual Incentive Plan (the
"Annual Incentive Plan") are met with respect to the Company's
1993 fiscal year, then JH shall entitled to receive, at the time
incentive bonuses would ordinarily be paid to participants in the
Annual Incentive Plan with respect to the 1993 plan year, an
incentive bonus.
If the relevant performance objectives described in the
Doskocil Companies Incorporated Annual Incentive Plan, (the
"Annual Incentive Plan") are met with respect to the Company's
1994 fiscal year, then JH shall be entitled to receive, at the
time incentive bonuses would ordinarily paid to participants in
the Annual Incentive Plan with respect to the 1994 plan year, an
incentive bonus. The pro-rated incentive bonus shall be
determined by multiplying the incentive bonus which would have
otherwise been payable to JH for such year under the terms and
provisions of the Annual Incentive Plan times a fraction, the
numerator of which shall be the number of days JH was employed by
the Company during the 1994 fiscal year, and the denominator of
which shall be 365.
(g) Stock Options and Equity Shares. All previously
granted but unvested Stock Options shall be exercisable on
January 1, 1994 and the entire option grant of 40,000 shares
shall remain exercisable at $l4.00 per share until the normal
expiration date of February 3, 1998. On January 1, 1994, all
previously granted but unvested Equity Shares shall become fully
vested in JH.
(h) Taxes. JH hereby agrees to provide the Company, as of
the respective vesting dates, with the amount of cash necessary
to cover the income tax withholding obligations with respect to
the vesting of the Equity Shares. The Company and JH understand
and agree that the Company will deduct from amounts payable under
this Agreement any other taxes or other amounts required by him
to be withheld.
(i) Reimbursement for Professional Fees. The Company shall
pay on JH's behalf all bills received by JH's attorneys,
accountants and other advisors in connection with the negotiation
and execution of this Agreement. Such payment by the Company
shall not exceed $7,500.00.
(j) Financial Counseling. JH will be entitled, through
December 31, 1994, to financial counseling services, at the
Company's expense, to the same extent available under the plan in
effect as of the date of JH's execution of this Agreement (the
cost of such services not to exceed $4,000.00).
(k) Loan. The company will provide on interest free loan in
accordance with the terms set forth in the attached Note (Exhibit
A). JH agrees to sign the Note at the time he signs this
Agreement. JH will be responsible for any and all taxes due on
such loan.
3. Releases. JH, in consideration of the promises set
forth herein, and with the intention of binding himself, his
heirs, executors, administrators and assigns, does hereby
irrevocably release, acquit and forever discharge the Company and
its past, present and future parents, subsidiaries, related
companies and affiliated enterprises (such parents, subsidiaries,
related companies and affiliated enterprises shall be referred to
as the "Related Entities"), administrators, agents, officers,
employees, directors, successors, assigns and attorneys of and
from all manner of actions, cause or causes of action, claims,
suits, covenants, controversies, agreements, promises, damages,
charges, and demands, whatsoever, in law or in equity or
otherwise, including, but not limited to, those relating to or
arising under any discrimination statute or law (including the
Age Discrimination in Employment Act of 1967, as amended, and any
statute or law relating to handicap or disability), breach of
contract, express or implied, breach of public policy, wrongful
or retaliatory discharge, personal or business injury, and all
claims to any form of compensation or benefits that he has, had
or may ever have arising out of or in connection with his
employment with the Company or the termination of said
employment. JH hereby expressly waves the benefit of any statute
or rule of law which, if applied to this Release, would otherwise
exclude from its binding effect any claims not now known by JH to
exist. This release shall not apply to any claim for breach of
this Agreement.
The Company, in consideration of the promises set forth
herein, does hereby irrevocably release, acquit and forever
discharge JH from all manner of actions, causes or causes of
action, claims, suits, covenants, controversies, agreements,
promises, damages, charges, and demands, whatsoever, in law or in
equity or otherwise, it has, had or may ever have against JH
arising out of or in connection with JH's employment with the
Company, excepting only claims for breach of this Agreement or
any claim relating to fraud, theft or embezzlement on the part of
JH.
4. Non-Disclosure of Confidential Information/Return of
Property. JH recognizes that, by reason of his employment with
the Company, he has acquired confidential information (including
but not limited to, confidential know-how, trade secrets,
customer lists, business plans end processes, marketing plans,
marketing research, sales information, accounting information)
concerning the Company and the Related Entities. Accordingly, JH
agrees that he shall not, at any time, directly or indirectly
(except to the extent required by law or permitted by the
Company), disclose any secret or confidential information he has
learned by reason of his association with the Company nor use any
such information to the detriment of the Company nor any of the
Related Entities. JH further agrees promptly to return to the
Company any and all property of the Company or any of the Related
Entities.
5. Confidentiality of Agreement. JH understands and agrees
that this Agreement, the terms of this Agreement, the
negotiations leading up to this Agreement, and any and all
matters concerning his separation from the Company are
confidential and shall be accorded the utmost confidentiality.
JH agrees that these matters will not be disclosed to any third
party except for his legal or tax advisor(s) to the extent
necessary to perform services, or except as disclosure of such
matters may be required by law. JH agrees that if any disclosure
is made is permitted under this paragraph, then such person(s)
shall be cautioned about the confidentiality obligations imposed
by this Agreement and required to abide by the terms of this
confidential undertaking.
6. Non-Competition. JH agrees that during the period
beginning on the Effective Date and ending on December 31, 1994,
he shall not engage in any business activity that is materially
competitive with or adverse to any business of the Company or any
of the Related Entities. The Company and its Related Entities
agree that JH may offer consulting services to food and meat
related companies and may participate in acquisitions or baits of
meat or food related companies.
7. Non-Solicitation of Employees. JH agrees that during
the period beginning on the Effective Date and ending on December
31, 1995, he shall not, without the prior written consent
of the Company's Board of Directors, directly or indirectly
solicit any employee of the Company or any of the Related
Entities, unless such employee has been terminated by the Company
or any of the Related Entities, to leave such employment and join
or become affiliated with a business that is competitive with the
business conducted by the Company or any of the Related Entities.
In the event JH violates this paragraph, the Company shall have
no further obligations to JH and, notwithstanding anything in
this Agreement to the contrary, JH shall promptly return to the
Company all payments previously made to JH pursuant to his
Agreement.
8. Irreparable Harm. JH acknowledges that: (i) JH's
compliance with this Agreement is necessary to preserve and
protect the proprietary rights, confidential information and
goodwill of the Company as a going concern; (ii) any failure by
JH to comply with the provisions of this Agreement shall result
in irreparable and continuing injury to the Company for which
there will be no adequate remedy at law and (iii) in the event
that JH should fail to comply with the provisions of this
Agreement, the Company shall be entitled, in addition to such
other relief as may be proper, to all types of equitable relief
(including, but not limited to, the issuance of an injunction or
temporary restraining order) as may be necessary to cause JH to
comply with this Agreement, to restore to the Company its
property, and to make the Company whole.
9. Audit. In the event, JH is notified by the Internal
Revenue Service ("IRS") of the IRS intention to audit any of his
tax returns reflecting the payments described in this Agreement
or the acceleration of vesting described in this Agreement, JH
may notify the Company and may provide to the Company (a) a copy
of the tax return(s) in issue and (b) any communication(s)
reflecting the scope of the intended audit.
Upon receipt of such notice from JH, the Company shall
undertake to provide to JH such legal and/or accounting
representation (as selected by the Company in its sole
discretion) as he may require with respect to such items and to
indemnify him for and hold him harmless against any reasonable
expenses (but not taxes, interest or penalties) incurred by him
in the course of such audit. Such indemnification shall include,
but not be limited to, any reasonable out-of-pocket expenses
incurred by JH in the course of preparation for and/or
participation in the audit, but shall not include any taxes,
interest or penalties. JH shall be responsible for the cost of
such representation to the extent any such audit involves issues
not related to the items described above. JH shall provide
reasonable assistance to the Company in defending him in the
audit as may be requested by the Company, agrees that he will
take reasonable steps to ensure that his personal legal and/or
accounting representatives (as described below) will cooperate
with such representatives as selected hereunder by the Company,
and shall submit to the Company periodically, statement of
expenses incurred, which statement shall be promptly paid by the
Company.
In the event that the scope of the audit includes items
other than the items described above, JH shall have the right to
retain his own legal and/or accounting representatives, at his
expense, and the Company agrees (a) that it shall take all
reasonable stops to ensure that the legal and/or accounting
representatives provided to JH by the Company shall fully
cooperate with those retained by JH and (b) that the legal and/or
accounting representatives provided to JH by the Company shall
not compromise or offer to compromise any claim without the
consent of JH or his legal and/or accounting representatives,
which consent shall not unreasonably be withheld.
10. Hold Harmless - The Company shall continue, through the
Effective Date, to indemnify JH and hold him harmless from any
liability or expense he may incur with respect to his duties as
an officer or director of the Company to the extent such
indemnification is provided as of the date hereof.
11. Office - The Company shall provide to JH appropriate
executive office space, office equipment and office personnel at
no cost to JH for the twelve (12) month per period commencing on
the Effective Date.
12. Entire Agreement. JH represents and warrants that no
promise or inducement has been offered or made except as herein
set forth and that the consideration provided herein is the sole
consideration for this Agreement. This Agreement is a complete
Agreement and, except as sat forth in the final sentence of this
Paragraph 10, states fully all agreements, understandings,
promises and commitments as between the Company and JH and as to
the separation of their employment relationship. It is further
understood and agreed that this Agreement specifically supersedes
any and all prior agreements or understanding, written or oral,
between the Company and JH, including the Employment Agreement
but excluding the "Agreement and Waiver with Respect to
Employment Agreement" executed by JH in March, 1993.
13. Choice of Laws. This Agreement shall be construed and
enforced in accordance with the laws and the State of Kansas
without regard to its principles concerning conflict-of-laws.
14. Resignation. By execution of this document, JH hereby
resigns as an officer and/or director of the Company as of the
Effective Date.
15. No Transfer. JH represents and warrants that he has
not sold, assigned, transferred, conveyed or otherwise disposed
of to any third-party, by operation of law or otherwise, any
action, cause of action, suit, debt, obligation, account,
contract, agreement, covenant, guarantee, controversy, judgment,
damage, claim, counterclaim, liability or demand of any nature
whatsoever relating to any matter covered by this Agreement.
16. Severability/Modification. If any provision of this
Agreement shall be found by a court of competent jurisdiction to
be invalid or unenforceable, in whole or in part, then such
provision shall be deemed modified or restricted to the extent
and in the manner necessary to render the same valid and
enforceable, or shall be deemed excised from this Agreement, as
the case may require, and this Agreement shall be construed and
enforced to the maximum extent permitted by law, as if such
provision had bean originally incorporated herein as so modified
or restricted, or as if such provision had not been originally
incorporated herein, as the case may be.
17. Advice. JH represents and warrants that he has read
this entire Agreement; has had up to twenty-one (21) days to
consider it, has been given the opportunity and has had this
Agreement reviewed by an attorney; understands its meaning and
application; and is signing of his own free will with the intent
of being bound by each and every provision of this Agreement. JH
further understands that he has seven (7) days to revoke this
Agreement after signing it.
(William L. Brady) (John T. Hanes)
DOSKOCIL COMPANIES JOHN T. HANES
INCORPORATED
Dated: December 31, 1993 Dated: December 31, 1993
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EXHIBIT A
FORM OF NOTE
$225,000 Oklahoma City, Oklahoma
December 31, 1993
FOR VALUE RECEIVED, the undersigned, John T. Hanes (the
"Maker"), hereby promises to pay to the order of Doskocil
Companies Incorporated (the "Payee), the principal amount of Two
Hundred Twenty-Five Thousand Dollars ($225,000) , payable to
Doskocil Companies Incorporated on January 3, 1995.
Payments on this Note are to be made to the Payee at such
place as the Payee shall designate to the Maker in writing, in
lawful money of the United States of America in immediately
available funds.
The Maker may prepay this Note in wholly or in part at any
time or times, without penalty, upon three (3) days written
notice to the Payee or any other holder of this Note.
Upon the insolvency, bankruptcy, receivership, dissolution
or liquidation of the Maker, whether voluntary or involuntary, or
the assignment by the Maker of its assets for the benefit or its
creditors or cessation of its active business operations or the
institution of any proceeding for the general application of the
Maker's assets to the payment of the Maker's liabilities the
entire outstanding principal amount of this Note shall
immediately become due and payable.
The Maker hereby expressly waives presentment, demand,
protest, notice of dishonor, notice of protest and other notices
of any kind in connection with this Note.
This Note may not be modified or the face hereof cancelled
except in a writing, signed by the Maker and by the Payee or any
other holder of this Note. This Note shall be governed,
construed and interpreted in accordance with the laws of the
State of New York.
The Maker agrees to pay costs and expenses of collection,
including without limitation, attorneys' fee and disbursements in
the event that any action, suit or proceeding is brought by the
holder hereof to collect this Note.
By: John T. Hanes
Dates Referenced Herein and Documents Incorporated by Reference
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